India in 10 years: Mainstreaming a dissident tradition

New Delhi, Feb. 4 -- For those who see the Supreme Court as the protector of constitutional civil liberties, and a bulwark for preserving individual rights against the excesses of the state, the last few years have been very disheartening. In 2013, the court upheld Section 377 of the Indian Penal Code, which criminalizes consensual same-sex relations, reversing a Delhi high court judgement that had read it down. In 2015, the court upheld a law passed by the state of Haryana, which prohibited individuals who had not attained a certain educational level, or who didn't have a toilet in their house, from contesting panchayat elections. In doing so, it sanctioned the disenfranchisement of the poorest and most vulnerable members of society, and in particular, of women and Scheduled Castes. That same year, the Supreme Court invented a new restriction upon speech that mocked "historically respectable personalities". And last year, the Supreme Court rejected a constitutional challenge to the colonial-era law of criminal defamation, holding-among other things-that the value of "fraternity" trumped the right to free speech.
There were exceptions. The court did strike down the notorious Section 66A of the Information Technology Act, holding that it was an unreasonable restriction upon freedom of speech. A few years before, in 2011, it had also handed down a remarkable judgement, stating that anti-terror laws could not criminalize simple "membership" of unlawful organizations, but only actual incitement to violence.
This is a familiar story. In the 67 years of its existence, the Supreme Court's record on civil liberties has been chequered and inconsistent. More often than not, it has taken the side of the state against the individual. Most notoriously, this happened during the Emergency, in the habeas corpus case, when it upheld the government's right to detain people without giving them the right to challenge such detention. That case, however, was never the kind of exception that it is made out to be. Before habeas corpus, the court had upheld the law of sedition, the law of blasphemy, and the law authorizing the banning of books. It had denied that the Constitution guaranteed a right to privacy, and it had upheld the pre-censorship of films. After habeas corpus, the Supreme Court upheld the constitutionality of laws such as the Armed Forces (Special Powers) Act and Terrorist and Disruptive Activities (Prevention) Act, upheld phone tapping with some token "safeguards", upheld book bans, and upheld a law-once again from Haryana-that disenfranchised people who had more than two children. This is India's famously activist Supreme Court in its deferential avatar, allowing the state to define the scope and contours of constitutional rights, and issuing a rhetoric of paternalism, "law and order", and "national security". Its judgements of the last few years have been of a piece with this tradition.
And yet this is not the full story. There is another tradition of Supreme Court judgements, a minority-almost a dissident-tradition. After vacillating for many years, the court did finally hold, in 1975, that the Constitution guaranteed a right to privacy. The court did hold, in 2010, that narco analysis and other similarly invasive custodial interrogation techniques violated that right to privacy, and were unconstitutional. The court did hold, in 2007, that prohibiting women from working as bartenders, ostensibly for their own good, violated their right to equal treatment under law. Even the habeas corpus judgement did not go entirely unanswered: Justice Hans Raj Khanna's dissenting opinion in that judgement has rightly become immortal.
In the next 10 years, issues of civil rights and civil liberties will continue to be at the forefront, at the bar. A five-judge bench is due to hear the Section 377 case, one last time. A three-judge bench of the court is due to hear the government's request to "review" its 2011 judgement on unlawful organizations. A petition challenging Rajasthan's discriminatory election disqualification provisions (on which the Haryana law was modelled) is pending before the court. And that is just the tip of the iceberg: As the Internet continues to grow exponentially, issues of freedom of speech and expression online will become even more urgent.
In the next 10 years, we can only hope that when the Supreme Court hears these cases, it chooses to adopt its dissident tradition of respect for individual rights, scepticism of the benevolence of government, and an awareness of its role as a bastion against overwhelming state power. The alternative would be a continued abdication of its constitutional role.